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Supreme Court gives green light on warrantless blood draw in drunk driving case

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WASHINGTON (CN) — In a halting endorsement of police forgoing warrants when a suspected drunken driver is unconscious, the Supreme Court ruled 5-4 Thursday that the driver’s blood is likely to be tested anyway for diagnostic purposes.

“Police officers most frequently come upon unconscious drivers when they report to the scene of an accident, and under those circumstances, the officers’ many responsibilities — such as attending to other injured drivers or passengers and preventing further accidents — may be incompatible with the procedures that would be required to obtain a warrant,” Justice Samuel Alito wrote for the plurality. “Thus, when a driver is unconscious, the general rule is that a warrant is not needed.”

Though the Wisconsin Supreme Court reached a similar decision last year in the underlying case, Alito vacated that ruling today to allow an additional showing by the driver, Gerald Mitchell, that police drew his blood in 2013 for the sole purpose of testing alcohol content, not for a medical purpose.

This is because the officer who pulled Mitchell over alongside a lake in Sheboygan did manage to conduct “a preliminary breath test,” clocking the driver at three times the legal limit.

Alito notes that Officer Alexander Jaeger conducted the test using a portable machine, however, and did not get a chance to use “evidence-grade breath testing machinery.”

By the time he got to the police station where better equipment awaited, Mitchell “was too lethargic even for a breath test,” the opinion states.

Mitchell fell unconscious completely by the time Jaeger got him to the hospital. Unable to withdraw consent to the blood draw, Mitchell was charged and convicted of drunken driving.

He noted in his ensuing petition to the U.S. Supreme Court that that Wisconsin’s law reflects a nationwide controversy. 

“Provisions like Wisconsin’s are widespread: twenty-nine states have laws sanctioning warrantless blood draws from unconscious intoxicated driving suspects,” the petition states. “This case is an opportunity for the court to resolve an important constitutional question: can state Legislatures obviate the warrant requirement by ‘deeming’ their citizens to have consented to Fourth Amendment searches?”

Though the Supreme Court unreservedly backed the propriety of BAC testing today, calling the exigency especially acute in unconscious-driver cases, Alito emphasized that there still remains the possibility that “a defendant would be able to show that his blood would not have been drawn if police had not been seeking BAC information, and that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.”

“Because Mitchell did not have a chance to attempt to make that showing, a remand for that purpose is necessary,” the ruling concludes.

With Justice Clarence Thomas concurring only in judgment, Justice Stephen Breyer tipped the scales in this case for the conservative wing of the court, joining Alito’s opinion along with Chief Justice John Roberts and Justice Brett Kavanaugh.

Justice Neil Gorsuch dissented meanwhile on the basis that the case was improvidently granted, while the remainder of the court argued that Fourth Amendment demands a warrant.

“Wisconsin has not once, in any of its briefing before this court or the state courts, argued that exigent circumstances were present here,” Sotomayor wrote, joined by Justices Ruth Bader Ginsburg and Elena Kagan.

Even if the state had brought up exigency, Sotomayor said court precedent forecloses it.

“Acting entirely on its own freewheeling instincts — with no briefing or decision below on the question — the plurality permits officers to order a blood draw of an unconscious person in all but the rarest cases, even when there is ample time to obtain a warrant,” Sotomayor wrote. “The plurality may believe it is helping to ameliorate the scourge of drunk driving, but what it really does is to strike another needless blow at the protections guaranteed by the Fourth Amendment.”

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